Plaintiff Elaine Shimer brought this action seeking a declaration that the
Oregon Public Accommodation Act, ORS 30.670 et seq., (1) requires the Fraternal Order of
the Eagles to admit women as members. (2) On cross-motions for summary judgment, the
trial court granted plaintiff's motion and denied defendants'. It held that the Fraternal
Order of the Eagles is a "place of public accommodation" and thus may not exclude
women. On appeal, the Eagles argue that the Public Accommodation Act was not
intended to reach the membership policies of private organizations. In the Eagles' view,
they remain free to exclude any person from membership on the basis of that person's
race, sex, or religion. Although we do not agree that the Public Accommodation Act is as
narrow as the Eagles perceive, we conclude that the court erred in resolving this case on
summary judgment; the question whether the Fraternal Order of the Eagles is a "place of
public accommodation" presents a disputed issue of material fact. We accordingly
reverse and remand.

Local aeries actively recruit new members in the community, setting goals
for new memberships and awarding prizes for those who recruit the most new members.
Before November 1995, the eligibility requirements for membership in local aeries
required that prospective members be at least 21 years of age, be of good moral character,
believe in the existence of a supreme being, and be male. Women are not permitted to
join, although there are ladies' auxiliary units at most of the local aeries. There are
numerous events in which only aerie members--that is, men--can participate. These
include weekly membership meetings and initiation ceremonies that are performed in
accordance with memorized rituals. The rituals include various references to male virtue
and brotherhood as well as prayers and references to God. At these meetings, the men
also consider proposals relating to fund allotment for local aerie activities. Women who
want to propose funding for particular activities must ask male aerie members to submit
proposals on their behalf.

In November 1995, the Eagles Grand Tribunal issued an opinion in which it
determined that the order must "yield to prevailing civil law" and remove the word "male"
from its eligibility requirements. Consequently, local aeries were free to eliminate the
gender restrictions in their local membership policies, although they were not required to
do so. Aerie 2081, the local aerie that plaintiff wants to join, decided to admit women
after learning about the Grand Tribunal's opinion. It ultimately admitted at least 15
women, two of whom have served on its board of trustees.

In July 1998, at its annual convention, the international Grand Aerie
reversed its stance on admitting women. It notified all local aeries that applicants are
required to be male and that any application not in compliance with that requirement
would not be processed by the Grand Aerie. In light of the Grand Aerie's decision, Aerie
2081 decided that it would not admit any more women as members. Since that time, all
women who have applied for membership have had their applications rejected.

Plaintiff has been a member of the ladies' auxiliary since December 1998,
and she has volunteered substantial amounts of time to the local aerie. She submitted her
membership application to Aerie 2081 in February 1999, along with her application fee,
because she wanted to be able to participate in the membership meetings and vote on
important aerie issues. Because the aerie was no longer accepting applications from
women, it rejected her application.

In June 1999, plaintiff was participating in a wagering game at Aerie 2081.
During the course of the game, another player suggested a rule change. Plaintiff, along
with several other female aerie members, auxiliary members, and male aerie members,
objected to the rule change. Several days later, plaintiff received notice that Aerie 2081
was taking disciplinary action against her for "conduct unbecoming an Eagle," based
upon the complaint that she made about the rule change. The only other members who
were disciplined were female aerie members. The auxiliary members who had not
applied for aerie membership were not disciplined, nor were any of the male aerie
members. Plaintiff then initiated this action, seeking a declaration that the Eagles' "male
only" membership policy violates the Public Accommodation Act.

On cross-motions for summary judgment, the trial court granted plaintiff's
motion and denied defendants'. It ruled that the Public Accommodation Act applies to the
Eagles because they emphasize recruitment and, except for a member's gender, are
unselective in their membership policies. The court also determined that the Eagles are
subject to the act because they consider business connections important and because they
offer their services to the public. The trial court accordingly ruled that the Eagles cannot
discriminate on the basis of gender and must allow women to become members.

On appeal, the Eagles argue that their order is not a "place of public
accommodation" within the meaning of the act. More specifically, they argue that, in
Schwenk v. Boy Scouts of America, 275 Or 327, 551 P2d 465 (1976), the Supreme Court
held that the membership policies of a private organization are not subject to the Public
Accommodation Act even though the goods and services that the organization provides to
the public may be. The Eagles reason that the trial court erred when it failed to follow
Schwenk. They argue alternatively that, if the act applies to them, it violates the state and
federal constitutions. We begin with the Eagles' statutory argument.

The Public Accommodation Act provides:

"All persons within the jurisdiction of this state shall be entitled to
the full and equal accommodations, advantages, facilities and privileges of
any place of public accommodation, without any distinction, discrimination
or restriction on account of race, religion, sex, marital status, color or
national origin."

ORS 30.670. The phrase "[a] place of public accommodation" means "any place or
service offering to the public accommodations, advantages, facilities or privileges
whether in the nature of goods, services, lodgings, amusements or otherwise." ORS
30.675(1). The statute also contains an exception from that definition; it provides that "a
place of public accommodation does not include any institution, bona fide club or place
of accommodation which is in its nature distinctly private." ORS 30.675(2).

In 1973, the legislature amended the Public Accommodation Act to prohibit
discrimination based on sex and marital status. Or Laws 1973, ch 714, § 1. The
legislature also expanded the act's reach; it redefined the phrase a "place of public
accommodation" to mean "any place or service offering to the public accommodations,
advantages, facilities or privileges whether in the nature of goods, services, lodgings,
amusements or otherwise." Id. at § 2.

Three years later, in Schwenk, the court considered whether the Boy Scouts (5)
were a "place of public accommodation" within the meaning of the act. There was little
doubt that the Boy Scouts offered boys "advantages [and] privileges whether in the nature
of * * * amusements or otherwise." The inquiry accordingly centered on whether the Boy
Scouts were a "place or service" within the meaning of the definition. The Supreme Court
explained that, because "the term 'place or service'" was ambiguous, (6) it was appropriate to
review the 1973 act's legislative history to determine what that term meant. Schwenk, 275
Or at 331.

"'The legislative history is clear that [the amended definition of a place of
public accommodation] is intended to be a broad one and to apply to all
types of businesses which offer goods and/or services to the public. This
includes the services of credit, financing mortgages, loans, and insurance as
well as hotels, motels, retail sales[.]'"

Id. at 335 (quoting the bureau's summary) (emphasis in original).

Having canvassed the legislative history, the court turned to the question
whether the Public Accommodation Act applied to the Boy Scouts. It noted that, if, as it
appeared, the legislature intended that the YMCA would not be subject to the act, then "it
is difficult to see how the legislature could have intended any different application of that
[a]ct to the Boy Scouts of America." Id. at 335. The court did not hold that the Boy
Scouts or the YMCA came within the exclusion in subsection (2) for "bona fide club[s]
* * * which [are in their] nature distinctly private." Id.; see ORS 30.675(2). Nor did it
specifically identify what characteristic of either the YMCA or the Boy Scouts exempted
them from the general definition of a place of public accommodation under subsection (1). See ORS 30.675(1). Rather, the court's holding rests on the syllogism that
the act was not intended to reach the YMCA; that, for the purposes of this issue, the Boy
Scouts and the YMCA were the same; and therefore, that the act did not apply to the Boy
Scouts.

The court did not explicitly tie the conclusion that it drew from the
legislative history--that "the [legislature's] primary concern and purpose * * * was to
prohibit discrimination by business or commercial enterprises which offer goods or
services to the public"--to its holding that the act does not apply to the YMCA and, by
extension, to the Boy Scouts. It did explain, however, that "the legislative history of the
Oregon Public Accommodation Act, when taken as a whole, is sufficiently clear so as to
compel the conclusion that the term 'place of public accommodation,' * * * was not
intended by the Oregon legislature to include the Boy Scouts of America, at least to the
extent of requiring it to accept applications by girls for membership." Schwenk, 275 Or at
336 (emphasis added). In light of the court's reliance on the whole legislative history, its
rationale appears to be that the Boy Scouts are not a business or a commercial enterprise
and thus are not subject to the Public Accommodation Act.

"[D]efendant is a business which sells memberships and substantial
concomitant business advantages to the male public throughout the state.
Defendant is not a 'private' organization. It is open to virtually all, except
women. Its revocation of the Lloyd club's charter was an action aimed at
denying its business product and services to a segment of the population on
the basis of sex."

81 Or App at 156-57.

Three propositions follow from Lloyd Lions Club. First, our opinion in
Lloyd Lions Club rests on the proposition that a "place of public accommodation" is a
business or commercial enterprise that offers privileges or advantages to the public. 81 Or
App at 153. That proposition follows directly from Schwenk. Second, we recognized that,
depending on the facts of a particular case, even community service organizations may be
business or commercial enterprises for the purposes of the Public Accommodation Act.
Id. at 157-58. Finally, we recognized that some private organizations may have such
unrestrictive membership criteria that the organization is effectively open to the public.
Id. at 157.

As we understand the Eagles' primary argument on appeal, they take issue
with the final proposition noted above and argue that, in holding that the membership
policies of private organizations may be subject to the Public Accommodation Act, our
opinion in Lloyd Lions Club impermissibly departed from the Supreme Court's decision in
Schwenk. We disagree with that argument for at least two reasons. As explained above,
the court did not hold in Schwenk that every private organization's membership policies
are exempt from scrutiny under the Public Accommodation Act. Nothing in Schwenk is
inconsistent with our recognition in Lloyd Lions Club that some nominally private
organizations may be so unselective in their membership criteria that they are effectively
public.

Beyond that, the argument that the Eagles advance on appeal is at odds with
the text of the statute. As noted above, ORS 30.675 distinguishes between organizations
that "offe[r] to the public" advantages or privileges, ORS 30.675(1), and "institution[s
and] bona fide club[s]" that are "in [their] nature distinctly private," ORS 30.675(2). The
former are subject to the Public Accommodation Act; the latter are not. In exempting
"distinctly private" organizations from the act's reach, the legislature made clear that the
act applies to organizations that are only nominally private. Put another way, the
legislature's use of the phrase "distinctly private" reflects a recognition that the evidence
may show, in any given case, that some ostensibly private organizations have such
unrestrictive membership criteria that they are effectively public. Our decision in Lloyd
Lions Club gives effect to that textual distinction. We find no reason to depart from it.
See Newell v. Weston

Eleanor Meyers, the representative from the Civil Rights Division of the
Bureau of Labor, testified:

"The Bureau of Labor has heard from citizens about experiences indicating
discrimination because of one's sex exists in some restaurant facilities, some
hotel and motel rental practices, some practices in the sale of business
services, and a large number of experiences related to the granting of credit
services."

Testimony, House State and Federal Affairs Committee, HB 2116, March 2, 1973, Ex 1
(statement of Eleanor Meyers). As Meyers' testimony makes clear, the concern about
equality for women was not limited to ensuring equality in business-related services but
extended as well to equal treatment in renting motel and hotel rooms and to a woman's
ability to obtain credit on the same terms as a man. Similarly, in arguing that
discrimination on the basis of sex should be prohibited, Jane Edwards explained that there
was no rational basis for excluding women from taverns, without suggesting that equality
of access to taverns related to anything other than social activities. Testimony, House
State and Federal Affairs Committee, HB 2116, March 2, 1973, Ex 6 (statement of Jane
Edwards). The legislative history provides no reason to impose the limit that the dissent
would on the statute's text.

"Because of the growing concern over the credit practices of various
financial institutions the question was raised as to what constituted a 'place
of public accommodation' and specifically whether the offering of credit and
related services fell within the scope of this provision. The definition of a
'place of public accommodation' was therefore changed to make very clear
that the law applies to any place offering any kind of goods or services to
the public, including institutions which offer credit."

Oregon State Bar CLE, 1973 Legislation 186 (1973) (emphasis added). Consistently with
that explanation, the legislative history reveals that the 1973 Legislature did not intend to
limit a person's access to organizations depending on the type of benefits they offered.

We accordingly adhere to our decision in Lloyd Lions Club that the question
whether an organization is a place of public accommodation turns on (1) whether it is a business or commercial enterprise and (2) whether its membership
policies are so unselective that the organization can fairly be said to offer its services to
the public. In this case, we reverse and remand to allow the trier of fact to determine
whether the Eagles are, like the Lions, in the business of selling memberships and whether
their membership criteria are unselective. This case arises on summary judgment, and
there is evidence in this record that the Eagles are as much in the business of selling
memberships as the Lions were. There is also evidence that, except for the Eagles'
decision to exclude women, they are as unselective in whom they admit as the Lions. Put
another way, the trier of fact reasonably could find that the Eagles are a business and that
their membership criteria are so generally unselective that they offer their product--membership in their organization--to the public.

To be sure, the nature of the Eagles' product differs from that of the Lions.
Although the Eagles' local organizations are authorized to offer disability and death
benefits to their members, the Eagles generally appear to offer more civic and social
benefits and fewer economic or business advantages than the Lions offered. But that
difference would not preclude the trial court from finding that the Eagles are a business
subject to the act. As noted above, the act is not limited to businesses that supply
economic or business advantages. Rather, it applies to businesses that offer to the public
"accommodations, advantages, facilities or privileges whether in the nature of goods,
services, lodgings, amusements or otherwise." ORS 30.675(1).

The majority errs when it holds that summary judgment under ORCP 47 is
precluded in this case. It concludes that there is a question of material fact as to whether
membership in the Fraternal Order of Eagles (Eagles) is subject to Oregon's Public
Accommodation Act (act) because "the Eagles are, like the Lions, in the business of
selling memberships" and "the trier of fact reasonably could find that the Eagles are a
business and that their membership criteria are so generally unselective that they offer
their product--membership in their organization--to the public." ___Or App at ___ (slip
op at 17). The majority misinterprets the meaning of the act and the Supreme Court case
interpreting it. Once the act is properly interpreted, no genuine issue of material fact
remains. As a matter of law, the membership service offered by the Eagles is not subject
to the act because it provides solely fraternal benefits without the accompanying purpose
of providing any economic advantages.

"(1) All persons within the jurisdiction of this state shall be entitled
to the full and equal accommodations, advantages, facilities and privileges
of any place of public accommodation, without any distinction,
discrimination or restriction on account of race, religion, sex, marital status,
color or national origin.

ORS 30.675 provides:

"(1) A place of public accommodation, subject to the exclusion in
subsection (2) of this section, means any place or service offering to the
public accommodations, advantages, facilities or privileges whether in the
nature of goods, services, lodgings, amusements or otherwise.

"(2) However, a place of public accommodation does not include any
institution, bona fide club or place of accommodation which is in its nature
distinctly private."

To understand what is in issue in this case in light of the above statutes, it is
important to identify what is not in issue. The Eagles are not, at least for purposes of this
case, a "bona fide club or accommodation which is in its nature distinctly private." Some
of their activities, including the furnishing of food, beverages, and social amusements, are
not distinctly private and, in fact, the evidence shows that those activities are open to both
genders. Consequently, ORS 30.675(2) has no application to this case. Second, the
membership activity of the Eagles is not "a place * * * offering to the public
accommodations, advantages, or facilities" within the meaning of subsection (1). ORS
30.675(1) (emphasis added). A "place" within the definition of the phrase "place of public
accommodation" in ORS 30.675(1) connotes a physical locale. Although an Eagles' lodge
could be a "place" within that definition for purposes of the activities that are open to the
public, physical access to the lodge is not the issue in this case. That leaves only one
alternative for coverage under ORS 30.675(1). Does membership in the Eagles constitute
a "service" within the meaning of the word in the statute as contemplated by the
legislature? If it does not constitute a "service," then it is not subject to the act, regardless
of the fact that the Eagles's other activities could be subject to the act.

In Schwenkv. Boy Scouts of America, 275 Or 327, 551 P2d 465 (1976), the
Supreme Court held that the word "service" has a specialized particular meaning within
the act. It is the majority's misunderstanding of what the Schwenk court said about the
word "service" that leads it to an erroneous analysis. As I discuss below, the word
"service" in the statute, as Schwenkinterpreted it, encompasses only those activities or
advantages of accommodations, advantages, facilities, or privileges that are commercial in
nature, e.g., those that the legislature wanted to be made available to the public without
discrimination by the offeror. That limitation on the definition of the word "service" is not
my creation from whole cloth; it is found in Schwenk and in the legislative history of the
act. It is also compelled by a comparison of the results in Schwenk with the legislative
history.

In Schwenk, a nine-year-old girl brought an action under the act through her
guardian ad litem. She alleged a violation of the act as the result of the Boy Scouts'
refusal to accept her application as a cub scout because she was a female rather than a
male. She did not allege that the Boy Scouts were subject to the act because they were a
business or a commercial organization. Rather, she alleged that the Boy Scouts offered
"scouting services and programs to members of the public in Oregon." Schwenk, 275 Or at
329. She argued that they were subject to the act because membership in the Boy Scouts is
a service and therefore a place of public accommodation. In response, the defendant
contended, among other things, that the legislative history of the act demonstrates that its
purpose was "to bar discrimination in businesses which offer goods or services to the
public." Id. at 331 (emphasis in original). In its analysis to determine the legislature's
intent, the court held that the words "place or service" in subsection (1) were ambiguous,
and it therefore turned to the legislative history of the act to determine the legislature's
intent.

After examining the legislative history, the court said:

"It would appear from the foregoing that the primary concern and
purpose of the Oregon legislature in its enactment of the Oregon Public
Accommodation Act was to prohibit discrimination by business or
commercial enterprises which offer goods or services to the public.

"* * * * *

"It may be true, as contended by plaintiff, that the Boy Scouts of
America is not a 'bona fide club or place of accommodation which is in its
nature distinctly private,' so as to come within the exception provided by
[ORS 30.675(2)] from compliance with provisions of the [act]. The same
may also be true of the YMCA and YWCA.

"If, however, as would appear from the legislative history of that Act,
the Oregon Legislature intended that services offered by the YMCA and
YWCA would not be subject to the provisions of the act (with the possible
exception of the operation of facilities for 'public accommodation' without
membership rights), it is difficult to see how the legislature could have
intended any different application of that Act to the Boy Scouts of America."
Id. at 334-35 (first emphasis in original; second emphasis added).

The court concluded:

"In our opinion, however, the legislative history of the [act], when
taken as a whole, is sufficiently clear so as to compel the conclusion that the
term 'place of public accommodation' as defined by ORS 30.675, as
amended in 1973, was not intended by the Oregon legislature to include the
Boy Scouts of America, at least to the extent of requiring it to accept
applications by girls for membership." Id. at 336 (emphasis added).

Justice O'Connell dissented. He said, "I find nothing in the Act nor in the
legislative background of the Act which suggests that it was to apply only to business or
commercial activities." Id. at 337. He asserted, "There is nothing about the wording of
the Oregon Act which suggests that it was intended to be confined to commercial
activities[.]" Id. at 339. He explained, "I cannot accept the majority's narrow
interpretation of the Act, limiting it to commercial activities or to material advantages such
as the obtention of credit." Id. at 341. O'Connell said, "The recurring distinction in the
legislative history is between that which is a public accommodation and that which is
'distinctly private'; it is not the distinction between commercial and non-commercial relied
upon in the majority opinion." Id. at 342. The Schwenk majority did not assert that
O'Connell misstated its position that the act focuses on commercial activities and
advantages.

In summary, the plaintiff in Schwenk argued that the Boy Scouts were
subject to the act because they offered membership services broadly to the public. The
Boy Scouts countered that the purpose of the act was to bar discrimination only in
businesses or commercial enterprises that offer services to the public and that they were
not a business or commercial enterprise. The Schwenk court did not adopt either
interpretation of the act advanced by the parties. Its methodology is clear. It
acknowledged, as the plaintiff contended, that the Boy Scouts organization was not an
exempt club or place of private accommodation under ORS 30.675(2), as also could "be
true of the YMCA and YWCA." Schwenk, 275 Or at 335. It then made a comparison of
the membership services of the Boy Scouts with the membership services offered by the
YMCA and the YWCA. It noted that the legislature did not intend the act to cover the
membership services of the YMCA and the YWCA. In light of that fact, it concluded that
"it is difficult to see how the legislature could have intended any different application" of
the act to the Boy Scouts. Id.

What is most significantin regard to the majority's interpretation of Schwenk
in this case is that neither the majority nor the dissenting opinion in Schwenk framed the
inquiry as whether the Boy Scouts are subject to the act because they are a business or
commercial enterprise. In other words, it was not germane to the Schwenk court's
reasoning whether or not the YMCA, the YWCA and the Boy Scouts could be deemed
business or commercial enterprises as organizations. Rather, for purposes of analysis of
coverage under the act, the court focused on the separate membership activity of the Boy
Scouts and evaluated it discretely. It was only by engaging in an "activity-by-activity" or
"service-by-service" analysis, as the legislature intended, that the majority in Schwenk
could have reached the conclusion that it did, and that methodology should control our
analysis in this case.

Thus, following the lead of the Schwenk court, the proper analysis in this
case begins with the understanding that the "place or service" phrase in ORS 30.675(1) is
ambiguous, and that fact requires us to resort to the legislative history underlying the act.

"Many important business and economic decisions are made in public places
which exclude women. Further it is impossible for employers and society
generally to recognize women as equal in business and professional
communities and yet consider them inferior socially. The result is that
unless places of public accommodations are open to persons of both sexes,
discrimination in employment will continue." Testimony, House State and
Federal Affairs Committee, HB 2116, March 2, 1973, Ex 6.

Thus, to summarize thus far, the statutory scheme as a whole is concerned
with equal access by the public and provides, therefore, that all persons are entitled to the
full and equal accommodation, advantages, facilities, and privileges of any place of public
accommodation. ORS 30.670. For purposes of the act, a "place of public
accommodation" is defined as either a place or a service. Thus, the phrase "places of
public accommodation" in the statute includes places and services in which the legislature
has said that the public has an interest in access without discrimination. The word
"service" in the statute must be applied in accordance with the legislature's intent, and the
act excludes from coverage under ORS 30.675(1) those services that the legislature did not
intend to be classified as "places[s] of public accommodation." The scope of the
limitation is found in the examples and the statements in the legislative history. The
Schwenk opinion refutes the use of the majority's "nature of the organization" test. Rather,
the Schwenk court used a test that focused on the advantages provided by the Boy Scouts'
membership service. Schwenk teaches us that the test to be applied under the act is
whether the individual "service" to which access is sought (in this case, Eagles'
membership service) provides the kind of benefit that the legislature intended to be to
regulated by the act. If it does, it is a "service" subject to the act. If it does not, it is
beyond legislative regulation. When that test is applied in this case, the answer becomes
apparent. The membership service of the Eagles, in the words of Justice O'Connell, is not
a "commercial" activity nor, in the words of the statute, does it provide business or
commercial "accommodations, advantages, facilities or privileges whether in the nature of
goods services, lodgings, amusements or otherwise." Consequently, the Eagles are entitled
to summary judgment as a matter of law.

The majority interprets the act and the Schwenk opinion differently.
According to its reasoning: (1) a "place of public accommodation" is a business or
commercial enterprise that offers privileges or advantages to the public; (2) community
service organizations may be business or commercial enterprises for purposes of the act;
and (3) "some private organizations may have such unrestrictive membership criteria that
the organization is effectively open to the public" for purposes of the act. __Or App at __
(slip op at 10). As to Schwenk, it says:

"[T]he court's holding rests on the syllogism that the act was not intended to
reach the YMCA; that, for the purposes of this issue, the Boy Scouts and the
YMCA were the same; and therefore, that the act did not apply to the Boy
Scouts.

"The court did not explicitly tie the conclusion that it drew from the
legislative history--that 'the legislature's primary concern and purpose * * *
was to prohibit discrimination by business or commercial enterprises which
offer goods or services to the public'--to its holding that the act does not
apply to the YMCA and, by extension, to the Boy Scouts. It did explain,
however, that 'the legislative history of the Oregon Public Accommodation
Act, when taken as a whole, is sufficiently clear so as to compel the
conclusion that the term 'place of public accommodation,' * * * was not
intended to include the Boy Scouts of America, at least to the extent of
requiring it to accept applications by girls for membership. Schwenk, 275 Or
at 336 (emphasis added). In light of the court's reliance on the whole
legislative history, its rationale appears to be that the Boy Scouts were not a
business or a commercial enterprise and thus are not subject to the Public
Accommodation Act." ___Or App at___ (slip op at 8-9).

The majority asserts that the limitation on the word "service" that Schwenk drew from the
legislative history is based on "the nature of the place or service, not the type of
'accommodations, advantages, facilities or privileges' it provides." ___ Or App at ___
(slip op at 12). Finally, the majority says that my interpretation of the holding in Schwenk
is at odds with Justice O'Connell's description of the majority's holding in Schwenk and the
text of the statute because the statute's definition of "place of public accommodation" is
not limited to organizations that offer only business-related benefits to their members but
also refers in general to "goods, services, lodgings or otherwise." It believes (not unlike
Justice O'Connell) that the act has a broader focus than a "woman's ability to compete on
equal terms with men in the business and financial world." ___Or App at ___ (slip op at
15).

I begin my response to the majority by discussing our disagreement about
the holding in Schwenk because, in my view, Schwenk provides the foundation for a proper
interpretation of the act. The majority says that the Schwenk court's "rationale appears to
be that the Boy Scouts are not a business or commercial enterprise and thus are not subject
to the Public Accommodation Act." __Or App at __ (slip op at 9). Thus, under the
majority's analysis, the Schwenk court decided that the Boy Scouts as an organization were
not to be treated as a business or commercial enterprise under the act. As stated
previously, the opinions in Schwenk do not pose that issue or purport to answer it, and,
necessarily, the majority must reach its understanding of the holding in Schwenk by
inference. The majority correctly concedes that the Schwenk court "did not explicitly tie
the conclusion that it drew" to the legislative history underlying the act. ___ Or App at
___ (slip op at 8). There is a good reason why the majority perceives a lack of support for
its interpretation in the Schwenk opinion. When understood correctly, Schwenk was not
decided on the basis that the Boy Scouts were not a business organization, but, rather,
under an analysis that evaluated the offer of a membership service separately from the Boy
Scouts' other activities.

Also, the majority's interpretation gives no effect to the Schwenk court's
observation that, while the act could cover the YMCA's operations of facilities, it does not
cover its offer of membership. If being a business or commercial enterprise is what makes
the difference between coverage and noncoverage, then it is difficult to perceive how the
Schwenk court could conclude that some of the YMCA's services are covered and others
are not. The YMCA as an organization is either a business, or it is not; if that is the test
for coverage, then all of its offerings of activities or advantages are covered by the act.
Clearly, however, under the Schwenk court's interpretation of the act, some activities could
be covered but others expressly are not.

Another conceptual problem with the majority's assertionthat the act is
intended to regulate only business or commercial organizationsis that the Schwenk court
declined to adopt a similar argument made by the Boy Scouts in that case. When faced
with competing arguments by the plaintiff(that the Boy Scouts were subject to the act
because they offered services and programs to the public) and by the Boy Scouts (that the
purpose of the act was to bar discriminationonly in businesses that offer goods or services
to the public), the court, after resorting to the legislative history, focused on the advantages
of the membership service offered by the Boy Scouts and concluded that itsmembership
service was not the kind of service covered by the act.

The majority also proposes that the answer lies in "whether [the Eagles]
membership policies are so unselective that the organization can fairly be said to offer its
services to the public." ___ Or App at ___ (slip op at 17). One conceptual problem with
that assertion is that the YMCA, the YWCA, and the Boy Scouts are all organizations that
solicit the public for membership, and yet they were held not subject to the act by the
Schwenk court. Moreover, had the Schwenk court adopted an "unselective offer to the
public" test, it would have adopted the plaintiff's argument or Justice O'Connell's
reasoning. O'Connell believed that the legislature intended the act to reach both
commercial and noncommercial services. But, according to the Schwenk majority, a
membership service that provides no economic or commercial advantage to its members
falls into the category of a noncommercial service and is not subject to regulation under
the act.

The majority also relies heavily on Lloyd Lions Club v. Int. Assoc. of Lions
Clubs, 81 Or App 151, 724 P2d 887 (1986), rev dismissed 303 Or 698 (1987), in support
of its interpretation ofthe act. It says that its understanding of the holding in Schwenk is
also "how we explained Schwenk'srationale when, 10 years later, we were asked to decide
whether the Lions Club was a place of 'public accommodation' within the meaning of the
Oregon Public Accommodation Act." ___ Or App at ___ (slip op at 9). In fact, Lloyd
Lions Club is the perfect illustration of the "activity-by-activity" evaluation that must be
used in order to give effect to the legislature's intent.

Lloyd Lions Club is an example of when a membership service is subject to
ORS 30.675(1). It teaches that the legislature intended to regulate the membership service
of organizations when membership in an organization is accompanied by concomitant
business advantages. In that case, the court made a finding of fact that "defendant is a
business which sells memberships and substantial concomitant business advantages * *
*." 81 Or App at 156-57 (emphasis added). On appeal, we explained that the Lions'
revocation of the local club's charter because it admitted female members "was an action
aimed at denying its business product and services to a segment of the population." Id. at
157 (emphasis added). Our holding that the Lions were subject to the act was predicated
on the finding that the Lions' membership service provides "substantial concomitant
business advantages." As we said, the record demonstrates that "there is a 'definite
business connection' in being a Lion." Id. at 155. In other words, the Lions were subject
to the act not because they were a commercial or business organization but because, in
offering the "service" of membership, they also provided business or professional
advantages that, in the legislature's view, should be available to both genders. The record
in this case is in direct contrast to the record in Lloyd Lions Club. There is no evidence
that membership in the Eagles provides a concomitant business advantage.

The majority misunderstands this court's reasoning and holding in Lloyd
Lions Club. It says that

"[w]e did not frame the question as whether membership in the Lions,
viewed separately, was a place or service subject to the act. * * * Rather,
the question that we answered was whether the national Lions organization
was a business or commercial enterprise." __ Or App at __ n 8 (slip op at 9
n 9).

However, the majority's interpretation of our opinion--that coverage under the act turned
on whether the Lions' national organization was a business--is refuted by what this court
said in Lloyd Lions Club:

"Defendant also argues that, because it is a nonprofit organization, it follows
ipso facto that it cannot be a business or commercial enterprise and therefore
cannot be subject to the Act as construed in Schwenk. We disagree. There
is no automatic equivalency between an organization's overriding
noncommercial character and the nature of specific activities it undertakes
which are independent of its noncommercial activities. The fact that
defendant's primary purpose is to render benevolent services in the
community does not mean that its active promotion and sale of
memberships, with the inducement and the consequence of business
advantages for members, cannot be and is not a business or commercial
activity. Carried to its extreme, defendant's argument would allow
charitable organizations to exclude persons from events such as public bake
sales on the basis of race, sex, religion or the other considerations forbidden
by the Act." 81 Or App at 157-58 (emphasis added).

In other words, it does not follow from the fact that an organization, like the
Lions is noncommercial in nature that it is not subject to the act. Rather, it was the
business or commercial nature of the activity of selling membership, and the concomitant
business advantage to members, that made the Lions subject to the act, despite its
primarily noncommercial, benevolent purpose and its not-for-profit organizational nature.

The majority's focus on the word "enterprise" in the Schwenk opinion proves
too much. The majority apparently would limit the term to one of its two possible
meanings. An "enterprise" refers to "a unit of economic organization or activity."
Webster's Third New Int'l Dictionary, 757 (unabridged ed 1993) (emphasis added). When
the Schwenk court used the phrase "business or commercial enterprises which offer goods
or services to the public" in its opinion, 275 Or at 334 (emphasis added), it included within
that description those "units of economic activity" that have a commercial purpose.
Consistently with Schwenk,this court's opinion in Lloyd Lions Club acknowledged the
nature of the Lions organization but then turned its focus to the Lion's specific activity of
offering membership and evaluated that activity for coverage under the act. Consistent
with Schwenk and a proper understanding of our opinion in Lloyd LionsClub, the correct
inquiry in this case is whether the offer of membership by the Eagles to the public carries
with it a concomitant business advantage. That inquiry necessarily requires a focus on the
activity of membership in the Eagles and the benefits or advantages offered to members,
and not on whether the Eagles organization is a business.

The majority also says that my interpretation is at odds with the text of the
act because

"[t]he statute does not say that the term 'place or service' is limited to
organizations that offer only business-related benefits or advantages to the
public[.] * * * According to the text of the statute, the term means 'any * * *
service offering * * * facilities or privileges whether in the nature of goods,
services, lodgings, amusements or otherwise." __ Or App at__ (slip op at
14). (Emphasis in original).

It also says that the legislature's focus was not limited to economic concerns regarding
females in the work place. The majority is only partially correct, and in substance, the
majority's complaints constitute a quarrel with the Schwenk court, not with me. As the
Schwenk court held, the word "service" in the statute is ambiguous. That conclusion led it
to the legislative history of the act to discern the legislature's intent about any limitation on
the meaning of the word "service" in the statute. As the Schwenk court held, the
legislative history demonstrates that the legislature intended to limit the meaning of the
word "service" in the statute to certain services and intended other "services" to be
exempted from the act.

Implicitly, the majority concedes in its interpretation of the act that the
legislature intended some limitation. According to it, the limitation is based on whether
the offeror of services is a business or commercial entity. Thus, the majority proposes a
"nature of the organization" test. Yet the statute on its face does not contain that limitation
either. In effect, both my interpretation and the majority's place limitations on the word
"service" in the statute, and the query becomes which proposed limitation is the correct
one. The answer to that query necessarily depends on the legislative history and the
Schwenk court's interpretation of that history. That analysis leads to the understanding
from the legislative history that whether the Eagles' membership service was intended by
the legislature to be exempt turns on whether the Eagles' membership service is like the
membership service of the YMCA, the YWCA, and the Boy Scouts.

As to the majority's complaint that my interpretation is inconsistent with the
legislature's intent to regulate those places that provide noneconomic activities or
advantages of "amusements or otherwise," the Schwenk court observed that the act is
intended "primarily" to regulate business or commercial enterprises. It does not follow
from that statement by that court that noncommercial organizations are excluded from
regulation if they offer to the public amusements or other noneconomic activities or
advantages through commercial enterprises. Thus, if a nonprofit organization operates a
theme park, or drives a truck through neighborhoods, offering ice cream for sale, those
activities constitute "places" or "services" that provide amusement and are therefore
subject to the act. Those kinds of activities, although offered by a noncommercial entity,
constitute commercial enterprises or activities. In contrast, the membership services of
organizations like the YMCA, the YWCA, and the Boy Scouts have no indicia of
commercial benefit or advantage to the member. The benefits of such services are
associational in nature and, accordingly, are not subject to the act under the holding in
Schwenk.

Finally, the majority asserts that "there is evidence in this record that the
Eagles are as much in the business of selling memberships as the Lions were." ___ Or
App at ___ (slip op at 17). If the majority means by that assertion that the Eagles are
subject to the act because they actively solicit the public to recruit nonmembers and charge
a fee for membership, then, again, the Boy Scouts, the YMCA, and the YWCA would also
be subject to the act because they too are in "the business of selling memberships" to the
public. But the solicitation of the public for membership, by itself, cannot trigger coverage
under the act, or the Schwenk court would have held the Boy Scouts to be subject to the
act, and the legislature would have considered the YMCA and YWCA to be subject to the
act. The distinction between the membership services of those organizations and the
membership service of the Lions can be based only on the fact that there was concomitant
business advantage regarding membership in the Lions.

If, instead, the majority is asserting that there is a genuine issue of material
fact in the record about whether the Eagles market their membership as providing a
concomitant business or professional advantage, such as occurred in Lloyd Lions Club,
then it asks the right question but reaches the wrong conclusion. The summary judgment
record is devoid of evidence that the Eagles market themselves as providing a business-related advantage to their members or that membership in the Eagles does, in fact, provide
such a benefit.

The application materials and brochures of the Eagles used in the
recruitment of members describe the purposes of membership as

"fraternal services to All Our Members, Social Activities for Eagle Families,
Civic Programs to Service the Community, Youth Guidance to Help Young
People, Fun, Fellowship, [and] Fraternalism."

The preamble to defendants' constitution states the purposes of the organization, including,

"[t]o unite fraternally for mutual benefit, protection, improvement, social
enjoyment and association, all persons of good moral character who believe in a
Supreme Being to inculcate the principles of liberty, truth, justice and equality,
to perpetuate itself as a fraternal organization and to provide for its
government."

According to the evidence, members are not even allowed to discuss business other than
Eagles business at membership meetings. Also, members do not identify themselves by
vocation on their membership materials, directories, name tags, or other materials. Each
of the members who submitted an affidavit in this case stated that his or her membership
was motivated by the attraction of associating with other like-minded individuals. The
uncontradicted evidence demonstrates that the Eagles' membership policy seeks to draw
individuals together by common bonds of shared beliefs and mutual respect for certain
virtues, regardless of their professional, employment, or business status.

At most, the record shows that some members of the Eagles use their
membership in the organization to promote their individual businesses. In her affidavit,
Lahmann asserts:

"Over the years, I have known many members of the Eagles. I have learned that
people join the Eagles for many reasons. Some view the Local Aerie as a place
to gather to socialize as adults with their families. Many support the charitable
work of the organization. Others like to participate in community activities.
An Eagles member is welcome at any Local Aerie anywhere, so some people
join so that they can take advantage of Local Aeries when they are traveling,
knowing that there will be one place in town where they can safely socialize
and meet people with whom they share at least one common bond. Others
consider Eagles membership to be a benefit to their business interests, since
Eagles are encouraged to patronize the businesses of fellow Eagles members."

Defendants moved to strike the above statement during the hearing on the
parties' cross-motions for summary judgment and renewed their objection to the evidence
on hearsay grounds on appeal. I would hold that the continuing objection to the evidence
on hearsay grounds is sufficient to preserve the issue on appeal. ORCP 47 D requires an
affidavit in support of a summary judgment motion to "set forth such facts as would be
admissible in evidence." The above evidence regarding the benefits of Eagles membership
does not comply with ORCP 47 D. Plaintiff's statement does not offer facts but rather
makes a bald conclusion. Moreover, those conclusions are necessarily based on
inadmissible hearsay. It does not even identify those "others" who perceive a business
connection associated with Eagles membership. OEC 802. Plaintiff's evidence should
have been stricken, and we should not consider it.

Even if it is not stricken as inadmissible evidence, Lahmann's affidavit does
not suffice to raise a genuine issue of material fact under ORCP 47. Her assertion is that
some members "consider Eagles membership to be a benefit to their business interests."
That assertion has no probative value to the issue of whether the Eagles as an organization
has promoted membership as a service that provides "substantial concomitant business
advantages." Instead, it speaks about the perception or motivation of some members of the
Eagles. The act, however, regulates the "place" or the "service" that offers
accommodations to the public. Nothing in the affidavit establishes that the Eagles' offer of
membership is an offer of a commercial activity or advantage.

The record also contains an advertisement by an Eagles member in the April
1999 edition of the "Eaglebeak," the monthly publication of the Local Aerie. The
advertisement says:

As is the case with the evidence from plaintiff Lahmann's affidavit, the advertisement is
not a promotion by the Eagles that membership in their organization will provide, in the
language of Lloyd Lions Club, "substantial concomitant business advantages." Individual
members of the Eagles are at liberty to offer whatever advantages they wish to other
members, but those kinds of solicitations by members do not operate vicariously on behalf
of the Eagles. Rather, ORS 30.675 makes it clear that services are subject to the act only
when some activity or advantage, commercial in nature, is offered.

In summary, there is no evidence in this summary judgment record that
demonstrates that the Eagles' membership service provides a concomitant economic or
commercial advantage to their members. It is clear that, without that kind of evidence, or
some other evidence showing that membership in the Eagles provides a benefit that the
legislature intended to make subject to public accommodation, there is no coverage under
the act. Applying the same test here that was applied in Schwenk--whether the
membership service is a commercial service to which the legislature would want to ensure
public access as a matter of right--it follows that the Eagles are entitled to summary
judgment in their favor.

In addition, there are at least two constitutional interests at stake that are
lurking in the background of this case and that are interrelated: the right of free association
and the right of free exercise of religious expression. Both interests find protection in the
state and federal constitutions. The majority says that it is premature to reach the issue of
whether the trial court's ruling infringes on those interests until the trial court resolves the
historical facts. But the parties have framed the issues in this case to present a question of
law, i.e.,coverage under the statute, and there are no controverted facts in the record that
would preclude summary judgment. The facts are what they are, and we must determine
their legal import under the language of the statute. Consequently, the constitutional
issues cannot be side-stepped. If the trial court's and plaintiffs' interpretations of ORS
30.675(1) are correct, then the constitutionality of the statute is in question because it
regulates fraternal organizations in a way that implicates those rights.

See, e.g., Roberts v. United
States Jaycees, 468 US 609, 104 S Ct 3244, 82 L Ed 2d 462 (1984). "[I]mpediments to the
exercise of one's right to choose one's associates can violate the right of association
protected by the First Amendment." Hison v. King & Spalding, 467 US 69, 80, 104 S Ct
2229, 81 L Ed 2d 59 (1984). In tracing the growing reach of state public accommodation
laws, the United States Supreme Court also has pointed out:

"As the definition of 'public accommodation' has expanded from clearly
commercial entities, such as restaurants, bars and hotels, to membership
organizations such as the Boy Scouts, the potential for conflict between state
public accommodations laws and the First Amendment rights of organization
has increased." Boy Scouts of America v. Dale, 530 US 640, 656, 120 S Ct
2446, 147 L Ed 2d 554 (2000).

That conflict will exist in this case under the majority's interpretation of ORS 30.675. The
constitutional right of each member of the Eagles to associate only with persons of his own
gender in his private associations will be infringed if the act is construed to require the
Eagles to admit females as members. Because the membership meetings are intimate,
private meetings in which members profess their beliefs and offer prayers together in
secret, the government's forced inclusion of unwanted individuals will violate the rights of
expressive association.

In Boy Scouts of America, 530 US at 646, the Court recognized that the
"forced inclusion of an unwanted person in a group infringes the group's freedom of
expressive association if the presence of that person affects in a significant way the group's
ability to advocate public or private viewpoints." For example, the Boy Scouts, if
compelled to accept the presence of a homosexual scout leader, would be compelled to
advance a viewpoint implicitly that they publicly condemn. See Boy Scouts of America,
530 US at 647 ("forcing a group to accept certain members may impair the ability of the
group to express those views, and only those views, that it intends to express"); see also
Board of Directors of Rotary Int'l v. Rotary Club, 481 US 537, 544, 107 S Ct 1940, 95 L
Ed 2d 474 (1987). In Roberts, 468 US at 621, the court explained:

"There can be no clearer example of an intrusion into the internal structure
or affairs of an association than a regulation that forces the group to accept
members it does not desire. Such a regulation may impair the ability of the
original members to express only those views that brought them together.
Freedom of association therefore plainly presupposes a freedom not to
associate." (Emphasis added.)

Citizens are also guaranteed the freedom to engage in expressive religious
activity under our constitutions. (22) That right is anchored in both the First Amendment
guarantee of freedom of expression and the guarantee of free exercise of religion.
Similarly, that right exists under the state constitution, in Article I, section 2's guarantee of
freedom of worship and Article I, section 3's guarantee of free exercise of religious
opinion. The right to choose how one will engage in religious expression has two
dimensions: the right to worship in words and ways of one's choosing and the right to be
free from compulsion to worship in ways one does not wish to worship. Both the federal
and the state constitutions guarantee the right of an individual to choose with whom to
worship as part of their way to worship.

As to the state's interest in eliminating discrimination because of gender, the
Supreme Court has drawn a distinction:

"We recognized in cases such as Roberts and [Board of Directors of Rotary
Int'l] that States have a compelling interest in eliminating discrimination
against women in public accommodations. But in each of these cases we
went on to conclude that the enforcement of these statutes would not
materially interfere with the ideas that the organization sought to express."
Boy Scouts of America, 530 US at 657.

No conclusion could be drawn here that the enforcement of ORS 30.675 against the Eagles
would not materially interfere with the ideals of the organization. According to the
membership rules of the Eagles, the membership meetings are conducted in strict privacy
according to secret rituals with only members present. The secret oaths, affirmations, and
prayers that occur at Eagles' members-only meetings emphasize belief in a Supreme Being,
fraternalism, manly virtues, and brotherhood. Everyone in the meeting is required to
participate in the affirmations and prayers and to share in the belief in a divine entity. The
enforcement of the act against the Eagles would clearly interfere with the ideals that the
Eagles seek to advance: the extolling of manly virtues and brotherhood in secret among
males and the offering of prayers and affirmations to a Supreme Being in the company of
like-minded males.

In summary, there are no genuine issues of material fact to be determined in
this case. ORS 30.675 regulates only those "services" in which the public has an interest
in equal access. The evidence is uncontradicted that membership in the Eagles offers no
business or economically related advantage or other advantage in which the public has an
interest. The majority could not be more wrong. Its holding is contrary to the legislature's
expressed intent, the Supreme Court's holding in Schwenk, and, if extended to its logical
end, the United States and the Oregon Constitutions.

I respectfully dissent.

1. ORS 30.670 through ORS 30.685 were renumbered in 2001 and are
currently codified as ORS 659A.400 through ORS 659A.409. References to ORS 30.670
through ORS 30.685 in this opinion are to the 1999 version unless otherwise stated.

2. Because two of the plaintiffs have dismissed their claims, only Shimer's
claim remains. Defendants consist of the international Grand Aerie of the Fraternal Order
of Eagles, the State of Oregon Aerie, and the local aerie, Willamette Aerie No. 2081. We
refer to defendants collectively as the Eagles.

3. The Eagles' brochure, "Active F.O.E. Membership and You," refers to the
conditions for receiving sickness and injury benefits. Section 115.1 of the statutes that
govern the Eagles authorizes each local aerie to provide its members with sickness,
disability, and funeral benefits. However, the local aerie that plaintiff wants to join does
not offer its members disability benefits. Although the local aerie previously had offered
its members death benefits, no new member has been enrolled in the death benefit
program for many years.

4. The act was first enacted in 1953. See Or Laws 1953, ch 495, § 2. It
provided:

"A place of public accommodation, resort or amusement shall mean
any hotel, motel or motor court, any place offering to the public food or
drink for consumption on the premises, or any place offering to the public
entertainment, recreation or amusement[.]"

6. The court described the statutory phrase "place or service" as a unitary
"term," the meaning of which was ambiguous. Schwenk, 275 Or at 331. In inquiring
what that term meant, the court did not distinguish between the words "place" and
"service" or attempt to assign separate meanings to them. See id. at 334-35.

8. In Lloyd Lions Club, the International Association of Lions Clubs had
revoked the Lloyd Lions Club's charter because it had accepted women as members. 81
Or App at 153. The local club brought an action against the international association
alleging that the association had violated the Oregon Public Accommodation Act. Id.

9. We did not frame the question as whether membership in the Lions, viewed
separately, was a place or service subject to the act. SeeLloyd Lions Club, 81 Or App at
156-57. Rather, the question that we answered was whether the national Lions
organization was a business or commercial enterprise. Id.

10. It appears from this statement that the dissent would engage in a two-part
inquiry in determining whether a service is a place of public accommodation. It would
ask initially whether the service is commercial rather than noncommercial. It would ask
next whether the service offers business-related or economic advantages. Only if the
answer to both questions is "yes" would the dissent hold that the service is subject to the
Public Accommodation Act.

11. The dissent relies on the reference to "business or commercial activities" in
Justice O'Connell's dissenting opinion in Schwenk to support its reading of the majority
opinion in that case. ___ Or App at ___ (Edmonds, P. J., dissenting, slip op at 5). Not
only is the phrase "business or commercial activities" consistent with our understanding
of the majority opinion, but Justice O'Connell later referred to the "majority's conclusion
that the legislature intended the public accommodatio[n] act to apply only to business or
commercial enterprises." Schwenk, 275 Or at 342 (O'Connell, J., dissenting) (emphasis
added).

12. In Lloyd Lions Club, we reasoned that the national Lions organization was
itself a business, that its members were its customers, and that membership in the
organization was the commodity that it sold them. 81 Or App at 156.

13. Textually, the definition of a place of public accommodation divides into
three parts: The phrase means "[1] any place or service [2] offering to the public
[3] accommodations, advantages, facilities or privileges whether in the nature of goods,
services, lodgings, amusements or otherwise." ORS 30.675(1) (bracketed material
inserted). In Schwenk, the court addressed the first part of that definition. It held that the
"term 'place or service'" was ambiguous and interpreted it. Schwenk, 275 Or at 331. The
court did not address the third part of the definition, which is unambiguously broad.

14. Although the dissent reasons that the legislature focused on places and
services that affect women in their business and financial lives, see ___ Or App at ___
(Edmonds, P. J., dissenting, slip op at 7-9), it apparently would apply the limitation that it
draws from the legislative history to services but not to places. The dissent never
explains why the limiting principle it derives from the legislative history would not apply
equally to both places and services, since the Schwenk court recognized that both words
were ambiguous. See Schwenk, 275 Or at 331.

15. The Supreme Court relied on another portion of this summary to support the
conclusion that it drew from the legislative history. See Schwenk, 275 Or at 334-35.
Generally, after-the-fact summaries of legislative history have little, if any, weight in
determining what the legislature intended. We rely, however, on the summary only to the
same extent that the court did--as support for the conclusion that we draw from the
testimony that was before the legislature when it enacted the 1973 amendments.

16. The dissent reasons that a passage from Genevieve Lahmann's affidavit
should not have been admitted. ___ Or App at ___ (Edmonds, P. J., dissenting, slip op at
20-21). It also reasons that an advertisement offering a discount to Eagles' members,
although admissible, does not reflect the Eagles' policy. Id. at ___ (slip op at 21-22).
Both pieces of evidence bear on the question that the dissent would find dispositive--whether the Eagles offer business-related benefits. As explained above, however, the
question is whether the Eagles are a business or commercial enterprise, not whether they
offer business-related benefits. Beyond that, defendants moved to strike only one clause
in the passage that the dissent quotes from Lahmann's affidavit. They moved to strike the
clause, "Others consider Eagles membership to be a benefit to their business interests."
Not only have defendants not assigned error to the trial court's ruling on their motion to
strike, but, even if the court had struck the statement, the remainder of the sentence,
which was not the subject of defendant's motion to strike, makes the same point. The
next clause in the sentence states: "Eagles are encouraged to patronize the businesses of
fellow Eagles members."

17. For example, although the Eagles no longer accept women as members, it
appears that the women who were admitted from 1995 to 1998 remain in the organization.
If so, their continued presence may bear on the question whether including women within
the Eagles would force the organization to send a message concerning women with which
the Eagles disagree. Compare Boy Scouts of America v. Dale, 530 US 640, 653, 120 S Ct
2446, 147 L Ed 2d 554 (2000) (requiring the Boy Scouts to accept a gay scout leader
would "force the organization to send a message * * * that the Boy Scouts accepts
homosexual conduct as a legitimate form of behavior," a message with which the Scouts
disagreed), withRoberts v. United States Jaycees, 468 US 609, 617-29, 104 S Ct 3244, 82
L Ed 2d 462 (1984) (concluding after a fact-intensive analysis that requiring the Jaycees
to include women as members would not affect their constitutionally protected
associational interests).

18. ORS 30.670 through ORS 30.685 were renumbered in 2001 and are
currently ORS 659A.400 through ORS 659A.409. References to ORS 30.670 through
ORS 30.685 in this opinion are to the 1999 version unless otherwise stated.

19. See, e.g., Testimony, House Committee State and Federal Affairs, HB 2116,
March 2, 1973, Ex 1 (statement of Eleanor Meyers, representing the Bureau of Labor and
Industries) ("The amendment simply adds sex as a class to the other classes protected
from class discrimination in the full use of facilities and privileges of any place of public
accommodation."). Meyers testified:

"Now where [the YMCA and YWCA] open facilities for public
accommodation without membership rights, that's another thing. * * * I
believe that use of their facilities is open to people of both sexes. It is the
membership that is not open on an equal basis." (Emphasis added.)

When asked whether the gender-based membership policies of the YMCA and YWCA
would be affected by the proposed bill, Meyers explained that "I don't think [the bill]
would [affect the YMCA's membership] as such. That's a question that needs further
research. It depends on what services could be called distinctly private." Tape recording,
House Committee on State and Federal Affairs, HB 2116, March 2, 1973, Tape 4, Side 2.

Also, Representative Vera Katz, the bill's sponsor, testified before the
House Committee and the Senate Committee on Consumer and Business Affairs
regarding the proposed amendments. Tape recording, House Committee on State and
Federal Affairs, HB 2116, March 2, 1973, Tape 4, Side 2. Katz told the committee a
personal anecdote in which she was excluded from the male-only dining room of a local
department store and about her surprise at learning of the department store's authority
under the then-existing law to maintain separate dining rooms based on gender. Id. She
then related that she had encountered many women during her political campaign who
had been discriminated against because of their divorced status. Id. She told the Senate
committee

"Now, present federal statutes and state statutes, as far as public
accommodations, don't speak to sex--are silent to sex. They talk about race,
color, national origin, but they don't speak to the point of sex. And men
have the right to congregate, if they want to, without women. They've got
their private clubs to do that in. We're not forcing anybody to integrate, but
we're trying to avoid segregation. This bill does not talk to private clubs
[or] government agencies." Id. (emphasis added).

In addition, Jane Edwards, representing the American Civil Liberties Union
before a House committee, testified:

"Those who oppose laws prohibiting discrimination generally argue men (or
women) have the right to congregate together without members of the
opposite sex. This of course is true. However, this bill is not trying to force
people to integrate but to prevent public places from segregating. Nothing
in the bill precludes private clubs from segregating or precludes people
from inviting only members of one sex or the other to their homes."
Testimony, House State and Federal Affairs Committee, HB 2116, March 2,
1973, Ex 6 (emphasis added).

20. The majority's reliance on the Schwenk dissent's characterization of the
majority opinion in Schwenk, ___ Or App at ___ (slip op at 13 n 11), and on an after-the-fact summary of legislative history, ___ Or App at ___ (slip op at 16), reflects exactly this
point. In the after-the-fact legislative summary, the example used is the offering of credit,
which, as addressed above, is the kind of "service" that often operates without a fixed
physical location. Such a service has economic consequences to all members of the
public. See Oregon State Bar CLE, 1973 Legislation 186 (1973).

21. Article I, section 26, of the Oregon Constitution, provides that "[n]o law
shall be passed restraining any of the inhabitants of the State from assembling together in
a peaceable manner to consult for their common good[.]" The First Amendment to the
United States Constitution provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof, or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble[.]"

22. Article I, section 2, of the Oregon Constitution, provides that "[a]ll men
shall be secure in the Natural right, to worship Almighty God according to the dictates of
their own consciences." Article 1, section 3, provides that "[n]o law shall in any case
whatever control the free exercise, and enjoyment of religious opinions, or interfere with
the rights of conscience."